At that time, Berger directed the board to revisit the proposed Housing Opportunity District (HOD) and request a change of zone that accompanied the original application, which the board also denied.

At its Nov. 1, 2016, meeting, the board unanimously rejected that new zone, which was proposed to be added to zoning regulations as Article III, Section 3.25. The board also denied a requested change to the zone from Design Office 25 and Residential A to the HOD zone.

Since it was filed under the state’s 8-30g affordable housing law, the project can be constructed without the regulations and zone change, but it will be non-conforming, since neither the office nor the residential zones permit multi-family housing.

In a motion for immediate hearing to court, which was dated Feb. 15, 2017, Timothy Hollister, attorney for Milford Developers, wrote, “The plaintiffs have accepted the board’s decision on all parts of the application.”

This document confirmed what Hollister said prior to the board’s vote on Nov. 1, 2016, when he told the board that if the P&Z denied the regulation and zone change, there would be no further court appeals.

“If you don’t adopt it, we can do without the regulation change,” Hollister said at that time.

The court’s Land Use Litigation Docket conducted a hearing on March 10, 2017, in Hartford to review the board’s final decision of Nov. 1, 2016. The hearing concluded without an announcement of the judge’s decision, which is expected to accept the P&Z decision on the proposed regulation and related zone change, thus allowing the project to proceed to the construction phase.

At the March 7 P&Z meeting, attorney Melinda A. Powell said the court had asked that the notice of the court hearing be on the board’s March 7 agenda “to provide public notice of the hearing.” The board listened to Powell’s commentary, but otherwise had no discussion and did not take any action, since none was required.

Referring to the P&Z denial of the proposed zone and related zone change, which she said Milford Developers did not plan to appeal, Powell said, “The court needs to hear from the applicant that they are withdrawing that portion of the appeal.”

The original plan, rejected by the board, was filed under the state’s 8-30g affordable housing law, which supersedes local zoning regulations. To prevail in court, the P&Z has to prove a project poses a hazard to public health, safety or welfare, a threat that outweighs the need for affordable housing.